Citation Nr: 21068548 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-32 873 DATE: November 10, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran does not have sufficient hearing loss in either ear to be considered a ratable disability for VA compensation purposes. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1996 to August 1999. In May 2021, in support of this claim, the Veteran testified at a "virtual" teleconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. The Board subsequently, in June 2021, remanded this claim back to the local Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ), for further development and consideration including especially to have the Veteran undergo a VA audiological examination for a needed medical opinion specifically concerning whether he has sufficient hearing loss in either ear or both to, in turn, be considered a "ratable" disability for VA compensation purposes. To this end, he underwent a VA examination in August 2021, and the report of the evaluation provides the necessary information, so the additional development directed to occur on remand regarding this claim has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In an August 2021 rating decision, on remand, the RO granted service connection for tinnitus (ringing in the ears) and assigned an initial 10 percent rating for this disability, retroactively effective from March 27, 2013. There is no higher schedular rating for this disease. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), citing 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260. In any event, if the Veteran disagrees with that initial rating and/or effective date, he must separately appeal these "downstream" issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Turning back now to the claim additionally for bilateral hearing loss, service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or an injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disability diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), if a "chronic" disease according to § 3.309(a), which sensorineural hearing loss is since a type of organic disease of the nervous system, a Veteran may establish the second and third elements of service connection by demonstrating continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a Veteran can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The Veteran contends that he has bilateral (so left and right ear) hearing loss from repeated exposure to excessively loud noise while serving as an aviation storekeeper and forklift operator on an aircraft carrier. See, e.g., May 2021 Board Hearing Transcript. But most fundamental to this claim is first establishing the Veteran has this claimed disability. Hearing loss will be considered a ratable disability for VA compensation purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores utilizing recorded Maryland CNC word lists are less than 94 percent. 38 C.F.R. § 3.385; see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007). The Veteran, however, does not have this required threshold minimum level of hearing loss in either ear, so, for all intents and purposes, there is no present-day ratable disability to, in turn, relate or attribute to his military service. In support of his claim, the Veteran submitted a Disability Benefits Questionnaire (DBQ) completed by private physician S.C. in April 2014 reporting the following puretone thresholds, in decibels. HERTZ 1000 2000 3000 4000 RIGHT 5 10 15 10 LEFT 5 10 20 15 Speech audiometry, using the Maryland CNC Test, revealed speech recognition ability of 100 percent in both the right ear and left ear. The doctor noted the Veteran had hearing within normal limits. Following and because of the Board's more recent June 2021 remand of this claim, the Veteran underwent a VA audiological examination in August 2021. He had the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 RIGHT 10 15 20 25 LEFT 15 20 25 30 Speech audiometry, using the Maryland CNC Test, revealed speech recognition ability of 100 percent in both the right ear and left ear. The examiner conceded the Veteran may have impaired hearing but that it is normal for VA compensation and rating purposes (meaning insufficient to be considered an actual ratable disability). The U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has clarified that the requirements for service connection for hearing loss, as defined in 38 C.F.R. § 3.385, need not be shown by the results of audiometric testing during a Veteran's period of active military service or even within the one-year presumptive grace period following conclusion of service for sensorineural hearing loss, especially, for service connection to be granted. In other words, this VA regulation does not necessarily preclude service connection for hearing loss that first met this regulation's requirements after service, so long as there is the required attribution of the hearing loss to the Veteran's service, as opposed to other (i.e., intercurrent) causes. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Here, though, even currently, the Veteran does not have sufficient hearing loss in either ear to satisfy the threshold minimum requirements of § 3.385 to be considered a "ratable" disability. Absent this required proof of present hearing loss disability according to the standards of § 3.385 (as opposed to lesser hearing loss), there can be no valid claim because, for all intents and purposes, there is no present disability to relate or attribute to his service. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Moreover, this failing has been true at all times since the filing of this claim or contemporaneous to that. To establish current disability, the Veteran must show that, at some point during the appeal period, he has the disability for which benefits are being claimed. McClain v. Nicholson, 21 Vet. App. 319 (2007) (a claim for service connection may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain on a recent diagnosis even predating the filing of a claim). A current disability means a disability shown by competent and credible (i.e., probative) evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). Here, though, unfortunately, both the April 2014 DBQ and the August 2021 VA examination failed to show sufficient hearing loss in either ear to be considered a ratable disability again, meaning sufficient hearing loss in either ear to meet the threshold minimum requirements of § 3.385. Moreover, while the Board acknowledges the Veteran's lay contentions of diminished hearing acuity, he is not shown to have the requisite training or credentials to determine whether he has sufficient hearing loss in either ear to be considered a ratable disability according to the requirements of 38 C.F.R. § 3.385. This critical determination is based, instead, on the results of objective testing of his hearing acuity, i.e., an audiometric evaluation considering hearing thresholds in specifically defined frequencies and percentage of speech recognition ability. In other words, this is a medically complex, not merely simple, determination, so medical, not just lay, evidence is required. 38 C.F.R. § 3.159(a)(1) and (a)(2). See also Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). For these reasons and bases, this claim of entitlement to service connection for bilateral hearing loss must be denied. And, since the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, Cameron B. The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.